The opinion
United States District Court
Middle District of Florida
Orlando Division
GLORIA MICHELLE GORE,
Plaintiff,
v. NO. 6:20-cv-1050-PDB
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Order
Gloria Gore brings this action under 42 U.S.C. § 405(g) to review a final
decision of the Acting Commissioner of Social Security denying her application
for disability insurance benefits. Under review is a decision by an
Administrative Law Judge (ALJ). Tr. 14–27. Summaries of the law and the
administrative record are in the ALJ’s decision, Tr. 14–27, and the parties’
briefs, Docs. 25, 26, and not fully repeated here.
Gore applied for benefits in 2017, Tr. 156, alleging she had become
disabled on January 1, 2010, from hemochromatosis, fibromyalgia, “slipped”
spinal discs, depression, and anxiety, Tr. 82. Her date last insured was March
31, 2013. Tr. 16, 182. The ALJ conducted a hearing in May 2019. Tr. 32–81.
Gore brought medical records of recent treatment for her hemochromatosis. Tr.
36. The ALJ explained that because her date last insured was March 31, 2013,
recent treatment would not relate to her claim. See Tr. 37. Gore argues the
ALJ erred in failing to accept the records as evidence.1 See Doc. 25 at 13–18.
A court’s review of a decision by the Commissioner is limited to whether
substantial evidence supports the factual findings and whether the correct
legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002).
A claimant must establish disability and produce evidence to support the
claim. 20 C.F.R. § 404.1512(a). The claimant must show disability before the
date last insured. 42 U.S.C. §§ 416(i)(3), 423(a), (c); 20 C.F.R. §§ 404.101,
404.130, 404.131; Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
The Social Security Administration (SSA) must develop a full and fair
record. 20 C.F.R. § 404.1512(b). The SSA must develop the claimant’s
“complete medical history for the 12-month period prior to the month [the
claimant was] last insured for disability insurance benefits[.]”2 20 C.F.R.
§ 404.1512(b)(1)(ii).
If the SSA fails to fulfill its duty and the record has evidentiary gaps
resulting in unfairness or clear prejudice, remand is warranted. Brown v.
Shalala, 44 F.3d 931, 935 (11th Cir. 1995). “In other words, ‘there must be a
showing of prejudice before [a court] will find that the claimant’s right to due
1A claimant must submit written evidence no later than five business days before the
administrative hearing. 20 C.F.R. § 404.935(a). If the claimant fails to comply with this
requirement, the ALJ may decline to consider the evidence unless one of the circumstances
listed in § 404.935(b) applies. Neither party raises this issue, and Gore’s untimeliness was
not the ALJ’s basis for declining to accept the medical records Gore brought to the hearing.
2An ALJ’s duty is heightened if the claimant is unrepresented and has not waived her
right to representation. Brown v. Shalala, 44 F.3d 931, 934–35 (11th Cir. 1995). Here, Gore
waived her right to representation, see Tr. 34–36, 152, and neither side contends the ALJ
had heightened responsibilities. She is now represented by counsel.
process has been violated to such a degree that the case must be remanded to
the [ALJ] for further development of the record.’” Mosley v. Acting Comm’r of
Soc. Sec. Admin., 633 F. App’x 739, 742 (11th Cir. 2015) (second alteration in
original) (quoting Brown, 44 F.3d at 935). “Prejudice requires a showing that
‘the ALJ did not have all of the relevant evidence before him in the record … or
that the ALJ did not consider all of the evidence in the record in reaching his
decision.’” Id. (quoting Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985)).
Missing medical records supporting a claim of disability can be prejudicial,
especially when they relate to treatment occurring near or during the pertinent
period. See Brown, 44 F.3d at 935–36.
Contrary to Gore’s argument, the ALJ adequately developed the record,
and substantial evidence supports the decision.
In the decision, the ALJ summarized the medical evidence concerning
Gore’s hemochromatosis. See generally Tr. 23. Gore was diagnosed with
hereditary hemochromatosis in 2003. Tr. 325. She was treated with weekly
phlebotomy. Tr. 325. In November 2010, her primary care physician gave her
a “good report” based on a physical and noted she has been treated by another
physician for hemochromatosis. Tr. 263. In March 2011, she was treated for
abdominal pain. Tr. 300. A note in the record explained she had not needed
phlebotomy for hemochromatosis in “quite some time.” Tr. 300. Although her
hemochromatosis was not an urgent matter, she had elevated liver function
tests, and was directed to see her gastroenterologist about phlebotomy. Tr. 301.
After her date last insured, in December 2013, she consulted Jennifer Crook,
M.D., about her hemochromatosis, reporting progressive fatigue over the last
year or so but ability to maintain an active lifestyle. Tr. 325. Her physical
examination was normal. Tr. 325–26. Dr. Crook noted that, although Gore had
received almost no treatment in the last decade, her ferritin levels were only
moderately elevated. Tr. 326. Dr. Crook recommended weekly phlebotomy for
four weeks and then routine monitoring of her ferritin levels. Tr. 326. In
February 2015, Gore reported increased fatigue and explained she had not
followed up on her hemochromatosis since 2011.3 Tr. 315.
These and the other medical records summarized by the ALJ provide
substantial evidence to support the residual functional capacity finding, which,
for the period at issue, limited Gore to light work with numerous other
limitations.4 Tr. 21.
Gore fails to show evidentiary gaps resulting in unfairness or clear
prejudice. The administrative record already included medical records
through 2018. Tr. 257–408. And although Gore possesses or possessed the
records she wanted to offer at the hearing, she fails to explain what they show.
Moreover, she does not contend the records relate to the period at issue, instead
asserting they “might.” Doc. 25 at 16–17.
Gore relies on Brown, 44 F.3d 931, but Brown does not help her. In
Brown, the court observed that “[t]he likelihood of unfair prejudice to a
3The record includes other medical evidence about Gore’s hemochromatosis not
specifically described by the ALJ. In April 2011, Gore returned to Eric Goldberg, M.D., who
she had seen years earlier for hemochromatosis. Tr. 268. He noted she had elevated ferritin
levels and recommended phlebotomy. Tr. 269–70. In May 2017, Kar Yee Ng, M.D., noted Gore
was receiving weekly phlebotomy from another provider. Tr. 365.
4The ALJ acknowledged Gore and her husband reported she is significantly restricted
in her daily activities and in attending to personal needs. See Tr. 22, 24. But after
“[c]onsideration of the record as a whole, including [Gore’s] reported activities of daily living,
conservative/routine treatment modalities, the longitudinal medical record, and the opinion
evidence,” the ALJ determined Gore’s allegations were “not entirely consistent with and
supported by the medical evidence and other evidence in the record.” Tr. 24. This finding is
unchallenged by Gore.
claimant may arise[ if] the evidentiary gap involves recent medical treatment,
which the claimant contends supports her allegations of disability[.]” Jd. at 936
n.9. Brown does not suggest the claimant’s insured status had expired or that,
if it had, the medical treatment post-dated the date last insured. See generally
Brown, 44 F.3d 981.
Because Gore shows no reversible error, the Court affirms the Acting
Commissioner’s decision and directs the clerk to enter judgment for the Acting
Commissioner of Social Security and against Gloria Gore and close the file.
Ordered in Jacksonville, Florida, on February 17, 2022.
PATRICIA D. BARKSDALE
United States Magistrate Judge